Rare Occurrence: Dermatologist Acquitted of More Than 40 Counts of Health Care Fraud Following a 16-Day Trial: Part 2 of a 3-Part Series Part Two: Prosecutorial Overcharging

Friday, December 11, 2015

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Virginia dermatologist, revered by several publications as one of the top doctors in the nation for several years running, was recently acquitted of more than 40 counts of health care fraud following an unusually lengthy 16-day trial. Dr. Amir Bajoghli was originally indicted in August 2014 on 60 counts; 53 counts of health care fraud, six counts of aggravated identity theft and one count of obstruction of justice. Bajoghli faced a maximum of ten years in prison for each count of health care fraud alone.

In part one of this three-part blog series, I reviewed Dr. Bajoghli's copious charges. To read part one, click here. The bulk of the prosecution's allegations were founded upon reported fraudulent billings as the result of the alleged unnecessary performance of Mohs micrographic surgeries (Mohs surgery). The single count for obstruction of justice was dismissed in June 2015, with the filing of a superseding indictment. The six counts of aggravated identity theft were later dismissed during trial as the result of Dr. Bajoghli's motion for judgment of acquittal. Dr. Bajoghli was exonerated of all charges for health care fraud by a jury verdict of "not guilty" on all remaining counts.

It seems the prosecution was overzealous in its charging of Dr. Bajoghli in this case. Not only was the prosecution clearly lacking evidentiary support on its claims, but it seems to have been overreaching with the profuse number of overlapping (and somewhat unusual or altogether erroneous) counts proffered in its indictment. It begs the question of whether the prosecution was simply hoping to leave with a charge of some sort rather than rectify an actual wrong, which itself creates an entirely new misjustice.

What is Prosecutorial Overcharging?

Prosecutorial overcharging is a practice that involves charging defendants with extraneous counts despite knowledge that such claims cannot be proven. The intent behind overcharging is to place prosecutors in a much better suited plea bargaining position. The term "overcharging" (as to prosecution) first appeared in academic literature in the mid-1960's.

In 1968, Professor Albert Alschuler published an article entitled, "The Prosecutor's Role in Plea Bargaining." This article remains influential today as a guiding authority in providing us with a basic understanding of prosecutorial overcharging and its utilization as a tool to induce plea bargains.

Professor Alschuler described two different types of overcharging in his article, horizontal and vertical. Both tactics are useful to the prosecution in setting the foundation for what is termed "charge bargaining." Charge bargaining is a type of plea bargaining that attempts to secure a guilty or no-contest plea to one offense in exchange for the dismissal or reduction of another offense.

The difference between the two types of overcharging lies in their form. Horizontal overcharging involves the practice of the unreasonable multiplication or duplicity of charges brought against a single defendant. Vertical overcharging involves charging a defendant with an offense that exceeds the level of the actual offense committed but includes the lesser offense for which conviction is actually sought.

In both circumstances, the prosecution is culpable of charging the defendant with counts it does not wish to pursue and cannot pursue due to insufficient evidentiary support. The charges are purely existential to catalyze a plea bargain with heightened bargaining power for the prosecutorial side. U.S. Supreme Court Justice Antonin Scalia described the prosecutorial practice of overcharging as "a predictable, though regrettable, aspect of modern plea bargaining."

If obtaining a plea bargain from Dr. Bajoghli was the intent of the prosecution in this instance, not only did it not achieve its goal but it flubbed its case overall. In overreaching and overcharging, the prosecution failed to meet its objective in proving its claims. And Dr. Bajoghli, by not caving to the prosecution's tactics, was able to secure a verdict in his favor.

The Saga to be Continued.

I will continue my discussion of this interesting and illustrative case in future blogs.

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About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

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